(By Delegates Fleischauer, Guthrie and Moore)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact §21A-6-3 of the Code of West Virginia,
1931, as amended, relating to unemployment compensation
generally and providing for the payment of unemployment
compensation when a person misses work due to domestic
violence.Be it enacted by the Legislature of West Virginia:
That §21A-6-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:ARTICLE 6. EMPLOYEE ELIGIBILITY; BENEFITS.
§21A-6-3. Disqualification for benefits.
Upon the determination of the facts by the commissioner, an
individual is disqualified for benefits:
(1) For the week in which he or she left his or her most
recent work voluntarily without good cause involving fault on the part of the employer and until the individual returns to covered
employment and has been employed in covered employment at least
thirty working days.
For the purpose of this subdivision, an individual has not
left his or her most recent work voluntarily without good cause
involving fault on the part of the employer, if the individual
leaves his or her most recent work with an employer and if he or
she in fact, within a fourteen-day calendar period, does return to
employment with the last preceding employer with whom he or she was
previously employed within the past year prior to his or her return
to workday, and which last preceding employer, after having
previously employed the individual for thirty working days or more,
laid off the individual because of lack of work, which layoff
occasioned the payment of benefits under this chapter or could have
occasioned the payment of benefits under this chapter had the
individual applied for benefits. It is the intent of this
paragraph to cause no disqualification for benefits for an
individual who complies with the foregoing set of requirements and
conditions. Further, for the purpose of this subdivision, an
individual has not left his or her most recent work voluntarily
without good cause involving fault on the part of the employer, if
the individual was compelled to leave his or her work for: his or
her own(A) Health-related reasons and notifies the employer prior to leaving the job or within two business days after leaving the job
or as soon as practicable and presents written certification from
a licensed physician within thirty days of leaving the job that his
or her work aggravated, worsened or will worsen the individual's
health problem; or
_____(B) Domestic violence related reasons and the individual
presents verification that he or she is the victim of domestic
violence. The benefits payable under this provision shall be paid
from the fund provided under the provisions of article eight of
this chapter and are not chargeable to the employer.
(2) For the week in which he or she was discharged from his or
her most recent work for misconduct and the six weeks immediately
following that week; or for the week in which he or she was
discharged from his or her last thirty-day employing unit for
misconduct and the six weeks immediately following that week. The
disqualification carries a reduction in the maximum benefit amount
equal to six times the individual's weekly benefit. However, if
the claimant returns to work in covered employment for thirty days
during his or her benefit year, whether or not the days are
consecutive, the maximum benefit amount is increased by the amount
of the decrease imposed under the disqualification; except that:
If he or she were discharged from his or her most recent work
for one of the following reasons, or if he or she were discharged
from his or her last thirty days employing unit for one of the following reasons: Gross misconduct consisting of willful
destruction of his or her employer's property; assault upon the
person of his or her employer or any employee of his or her
employer; if the assault is committed at the individual's place of
employment or in the course of employment; reporting to work in an
intoxicated condition, or being intoxicated while at work;
reporting to work under the influence of any controlled substance,
as defined in chapter sixty-a of this code without a valid
prescription, or being under the influence of any controlled
substance, as defined in said chapter without a valid prescription,
while at work; adulterating or otherwise manipulating a sample or
specimen in order to thwart a drug or alcohol test lawfully
required of an employee; refusal to submit to random testing for
alcohol or illegal controlled substances for employees in safety
sensitive positions as defined in section two, article one-d,
chapter twenty-one of this code; arson, theft, larceny, fraud or
embezzlement in connection with his or her work; or any other gross
misconduct, he or she is disqualified for benefits until he or she
has thereafter worked for at least thirty days in covered
employment: Provided, That for the purpose of this subdivision,
the words "any other gross misconduct" includes, but is not limited
to, any act or acts of misconduct where the individual has received
prior written warning that termination of employment may result
from the act or acts.
(3) For the week in which he or she failed without good cause
to apply for available, suitable work, accept suitable work when
offered, or return to his or her customary self-employment when
directed to do so by the commissioner, and for the four weeks which
immediately follow for such additional period as any offer of
suitable work shall continue open for his or her acceptance. The
disqualification carries a reduction in the maximum benefit amount
equal to four times the individual's weekly benefit amount.
(4) For a week in which his or her total or partial
unemployment is due to a stoppage of work which exists because of
a labor dispute at the factory, establishment or other premises at
which he or she was last employed, unless the commissioner is
satisfied that he or she: (1)(A) Was not participating, financing
or directly interested in the dispute; and (2)(B) did not belong
to a grade or class of workers who were participating, financing or
directly interested in the labor dispute which resulted in the
stoppage of work. No disqualification under this subdivision is
imposed if the employees are required to accept wages, hours or
conditions of employment substantially less favorable than those
prevailing for similar work in the locality, or if employees are
denied the right of collective bargaining under generally
prevailing conditions, or if an employer shuts down his or her
plant or operation or dismisses his or her employees in order to
force wage reduction, changes in hours or working conditions. For the purpose of this subdivision if any stoppage of work continues
longer than four weeks after the termination of the labor dispute
which caused stoppage of work, there is a rebuttable presumption
that part of the stoppage of work which exists after a period of
four weeks after the termination of the labor dispute did not exist
because of the labor dispute; and in that event the burden is upon
the employer or other interested party to show otherwise.
(5) For a week with respect to which he or she is receiving or
has received:(a)(A) Wages in lieu of notice;(b)(B) Compensation for temporary total disability under the
workers' compensation law of any state or under a similar law of
the United States; or(c)(C) Unemployment compensation benefits under the laws of
the United States or any other state.
(6) For the week in which an individual has voluntarily quit
employment to marry or to perform any marital, parental or family
duty, or to attend to his or her personal business or affairs and
until the individual returns to covered employment and has been
employed in covered employment at least thirty working days:
Provided, That an individual who has voluntarily quit employment to
accompany a spouse serving in active military service who has been
reassigned from one military assignment to another is not
disqualified for benefits pursuant to this subdivision: Provided however, That the account of the employer of an individual who
leaves the employment to accompany a spouse reassigned from one
military assignment to another may not be charged.
(7) Benefits may not be paid to any individual on the basis of
any services, substantially all of which consist of participating
in sports or athletic events or training or preparing to so
participate, for any week which commences during the period between
two successive sport seasons (or similar periods) if the individual
performed the services in the first of the seasons (or similar
periods) and there is a reasonable assurance that the individual
will perform the services in the later of the seasons (or similar
periods).
(8) (a)(A) Benefits may not be paid on the basis of services
performed by an alien unless the alien is an individual who was
lawfully admitted for permanent residence at the time the services
were performed, was lawfully present for purposes of performing the
services or was permanently residing in the United States under
color of law at the time the services were performed (including an
alien who is lawfully present in the United States as a result of
the application of the provisions of Section 203(a)(7) or Section
212(d)(5) of the Immigration and Nationality Act): Provided, That
any modifications to the provisions of Section 3304(a)(14) of the
federal Unemployment Tax Act as provided by Public Law 94-566 which
specify other conditions or other effective date than stated in this subdivision for the denial of benefits based on services
performed by aliens and which modifications are required to be
implemented under state law as a condition for full tax credit
against the tax imposed by the federal Unemployment Tax Act are
applicable under the provisions of this section.(b)(B) Any data or information required of individuals
applying for benefits to determine whether benefits are not payable
to them because of their alien status shall be uniformly required
from all applicants for benefits.(c)(C) In the case of an individual whose application for
benefits would otherwise be approved, no determination that
benefits to the individual are not payable because of his or her
alien status may be made except upon a preponderance of the
evidence.
(9) For each week in which an individual is unemployed
because, having voluntarily left employment to attend a school,
college, university or other educational institution, he or she is
attending that school, college, university or other educational
institution, or is awaiting entrance thereto or is awaiting the
starting of a new term or session thereof, and until the individual
returns to covered employment.
(10) For each week in which he or she is unemployed because of
his or her request, or that of his or her duly authorized agent,
for a vacation period at a specified time that would leave the employer no other alternative but to suspend operations.
(11) In the case of an individual who accepts an early
retirement incentive package, unless he or she: (i)(A)
Establishes a well-grounded fear of imminent layoff supported by
definitive objective facts involving fault on the part of the
employer; and (ii)(B) establishes that he or she would suffer a
substantial loss by not accepting the early retirement incentive
package.
(12) For each week with respect to which he or she is
receiving or has received benefits under Title II of the Social
Security Act or similar payments under any Act of Congress, or
remuneration in the form of an annuity, pension or other retirement
pay from a base period employer or chargeable employer or from any
trust or fund contributed to by a base period employer or
chargeable employer or any combination of the above, the weekly
benefit amount payable to the individual for that week shall be
reduced (but not below zero) by the prorated weekly amount of those
benefits, payments or remuneration: Provided, That if the amount
of benefits is not a multiple of $1, it shall be computed to the
next lowest multiple of $1: Provided, however, That there is no
disqualification if in the individual's base period there are no
wages which were paid by the base period employer or chargeable
employer paying the remuneration, or by a fund into which the
employer has paid during the base period: Provided further, That notwithstanding any other provision of this subdivision to the
contrary, the weekly benefit amount payable to the individual for
that week may not be reduced by any retirement benefits he or she
is receiving or has received under Title II of the Social Security
Act or similar payments under any Act of Congress. A claimant may
be required to certify as to whether or not he or she is receiving
or has been receiving remuneration in the form of an annuity,
pension or other retirement pay from a base period employer or
chargeable employer or from a trust fund contributed to by a base
period employer or chargeable employer.
(13) For each week in which and for fifty-two weeks
thereafter, beginning with the date of the decision, if the
commissioner finds the individual who within twenty-four calendar
months immediately preceding the decision, has made a false
statement or representation knowing it to be false or knowingly
fails to disclose a material fact, to obtain or increase any
benefit or payment under this article: Provided, That
disqualification under this subdivision does not preclude
prosecution under section seven, article ten of this chapter.

NOTE: The purpose of this bill is to provide for the payment
of unemployment compensation when a person misses work due to
domestic violence. The bill provides that the employer is not
chargeable for benefits paid when the worker is unable to work due
to domestic violence but that the benefits are paid from the
General Unemployment Compensation Fund.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.